GOLDEN STAR RESOURCES LTD.
SHARE APPRECIATION RIGHTS PLAN
The purpose of this Plan (as defined below) is to provide incentive compensation, based on the appreciation in value of the Shares (as defined below), to directors, executive officers, employees and Consultants (as defined below) of the Corporation (as defined below) and/or its Subsidiaries (as defined below) whose participation in this Plan is voluntary, thereby providing additional incentive for their efforts in promoting the continued growth and success of the business of the Corporation, as well as to assist the Corporation and its Subsidiaries in attracting, motivating and retaining qualified directors, executive officers, employees and Consultants.
As used herein:
Act means the Securities Act (Ontario) and the regulations and rules thereunder;
Award Amount has the meaning attributed thereto in Section 6(f);
Board means the board of directors of the Corporation;
Cause means, with respect to a Grantee, cause as defined in the Grantees employment or consulting agreement, if applicable, and otherwise (i) unless resulting from Disability, such Grantees material breach of any terms of his or her employment or consulting agreement with the Corporation or a Subsidiary, as applicable, if such material breach has not been cured within thirty (30) days following written notice of such breach to the Grantee from the Corporation or the Subsidiary, as applicable, setting forth the nature of the breach or, if cure cannot reasonably be effected within such 30-day period, if the Grantee does not commence to cure the breach within such 30-day period and thereafter pursues such cure continuously and with due diligence until cure has been fully effected; (ii) the Grantees wilful dishonesty towards, fraud upon, crime against, bad faith action with respect to, deliberate or attempted injury to, or gross misconduct or material noncompliance with the Corporations policies and procedures which is materially injurious to the Corporation or a Subsidiary; (iii) the Grantees conviction for any indictable crime (whether in connection with the Corporations affairs or otherwise); or (iv) the Grantees failure to comply with any lawful directive of the Board or the board of directors of a Subsidiary, as applicable, the failure to comply with which is stated in such directive to be grounds for termination;
Change of Control means the occurrence of any of the following: (i) the sale, lease, transfer, conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Corporation to any person or group (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act); (ii) any person or group, is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have beneficial ownership of all Shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than fifty percent (50%) of the total voting power of the voting stock of the Corporation, including by way of merger, consolidation or otherwise; (iii) during any
period of two consecutive years, individuals who at the beginning of such period constituted the Board (together with any new directors whose nomination by the Board for election by the shareholders of the Corporation was approved by a vote of a majority of the directors of the Corporation, then still in office, who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board, then in office, or (iv) the Corporation is liquidated or dissolved;
Change of Control Payment Amount has the meaning attributed thereto in Section 10;
Committee has the meaning attributed thereto in Section 3(a);
Consultant means a person or corporation, other than an employee, executive officer, or director of the Corporation or any of its Subsidiaries, that (a) is engaged to provide services to the Corporation or its Subsidiaries, other than services provided in relation to a distribution of securities, (b) provides the services under a written contract with the Corporation or a Subsidiary, and (c) spends or will spend a significant amount of time and attention on the affairs and business of the Corporation or a Subsidiary and includes, for an individual consultant, a corporation of which the individual consultant is an employee or shareholder, or a partnership of which the individual consultant is an employee or partner;
Corporation means Golden Star Resources Ltd. and any continuing corporation resulting from its continuation, or an amalgamation or arrangement of it with any other corporation, or resulting from any other form of corporate reorganization;
Disability means, with respect to a Grantee, his or her incapacity due to physical or mental illness such that he or she is unable to perform his or her previously assigned duties where (i) such incapacity has been determined to exist by either (a) the Corporations disability insurance carrier or (b) the concurring opinions of two licensed physicians (one selected by the Corporation and one by the Grantee) or (ii) the Grantee has failed for any three (3) consecutive months in any calendar year or for six (6) months in the aggregate in any two successive calendar years to have performed substantially all of his or her duties under his or her employment or consulting agreement with the Corporation or a Subsidiary, as applicable, by reason of physical or mental illness, as determined by the Board;
Eligible Participant means any director, executive officer, employee or Consultant of the Corporation or any Subsidiary;
employee means any full-time or part-time employee of the Corporation or any Subsidiary;
Exchange means the NYSE Amex or, if the Shares are not traded thereon, any other stock exchange or quotation system on or through which the Shares may be, from time to time, listed or quoted for trading that has the greatest trading volume and value, in either case as of the relevant date for the purposes of any determination of Fair Market Value pursuant to this Plan;
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended from time to time, and any successor thereto;
executive officer means, for the Corporation, an individual who is (a) a chair, vice-chair or president, (b) a vice president in charge of a principal business unit, division or function including sales, finance or production, (c) an officer of the Corporation or any of its Subsidiaries and who performs a policy-making function in respect of the Corporation, or (d) performing a policy-making function in respect of the Corporation;
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Exercise Period means, with respect to a particular Share Appreciation Right, the period commencing on the day on which such Share Appreciation Right is Vested and therefore becomes exercisable, as determined by the Committee on the Grant Date, and which ends at the Expiry Time or, in the event of a Termination or Termination For Cause, such earlier day as is contemplated by Sections 7(b) and 9;
Expiry Time means, with respect to a particular Share Appreciation Right, 5:00 p.m. (Denver time) on the last day on which a Share Appreciation Right that has Vested is exercisable, as set forth in the applicable Grant Agreement; provided that if a Share Appreciation Right expires during a trading black-out period imposed by the Corporation to restrict trades in the Corporations securities, then, notwithstanding any other provision of this Plan, the Share Appreciation Right shall expire ten (10) business days after the trading black-out period is lifted by the Corporation; and further provided that in all circumstances the last day on which a Share Appreciation Right is exercisable shall be no later than the last day of the calendar year in which such Share Appreciation Right is Vested, unless such Share Appreciation Right is exercisable no later than the third (3rd) anniversary of the Grant Date in which case such Share Appreciation Right may be exercised at any time on and after Vesting and no later than the day that is the third (3rd) anniversary of the Grant Date (unless an earlier day is specified in the applicable Grant Agreement) and in case a trading black-out period would include or extend beyond any such day, the black-out period will be deemed lifted as of such day;
Fair Market Value means for any given date:
Grant Agreement means the agreement substantially in the form of Schedule A hereto between the Corporation and a Grantee under which Share Appreciation Rights are granted, together with such amendments, deletions or changes as are permitted under this Plan;
Grant Date means, with respect to a particular grant of Share Appreciation Rights, the date on which the Committee grants such Share Appreciation Rights;
Grantee means an Eligible Participant who has been granted Share Appreciation Rights under this Plan;
Independent Committee means a committee of the Board consisting of such two or more directors of the Corporation as the Board may designate from time to time, all of whom shall be and remain directors of the Corporation, provided that to the extent necessary to comply with U.S. Code Section 162(m) or Rule 16b-3 under the Exchange Act, each member of such committee shall be an outside director within the meaning of U.S. Code Section 162(m) and a non-employee director within the meaning of Rule 16b-3 under the Exchange Act and further provided that such Committee shall also satisfy any independence requirements of any national securities exchange in the United States on which the Shares are listed;
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Market Price means the closing price of the Shares on the Exchange on the day immediately preceding the relevant date;
NI 45-106 means National Instrument 45-106 - Prospectus and Registration Exemptions;
NYSE Amex means the NYSE Amex Stock Exchange and any successor(s) thereto;
Permitted Assign means, for an employee, executive officer, director or Consultant of the Corporation or a Subsidiary (a) a trustee, custodian or an administrator acting on behalf, or for the benefit, of the employee, executive officer, director or Consultant, (b) a holding entity of the employee, executive officer, director or Consultant, (c) a spouse of the employee, executive officer, director or Consultant, (d) a trustee, custodian or administrator acting on behalf, or for the benefit, of the spouse of the employee, executive officer, director or Consultant, or (e) a holding entity of the spouse of the employee, executive officer, director or Consultant;
Plan means this Share Appreciation Rights Plan as it may be amended from time to time in accordance with the provisions hereof;
Share Appreciation Rights means the share appreciation rights granted pursuant to Section 6 of this Plan;
Shares means the common shares in the capital of the Corporation as constituted at the date of this Plan, or any shares or securities into which such shares may be changed, reclassified, subdivided, consolidated, converted or for which such shares may be exchanged;
Subsidiary means any entity that, with respect to the Corporation, now or hereafter meets the definition of subsidiary in NI 45-106 as such definition appears on the original date of adoption of this Plan by the Board;
Termination has the meaning attributed to it in Section 9(a);
Termination For Cause means, with respect to a Grantee, the termination by the Corporation for Cause of such Grantees position as a director, executive officer, employee and/or Consultant with the Corporation or a Subsidiary, as applicable, including but not limited to the resignation at the request of the Corporation for Cause;
U.S. Code means the Internal Revenue Code of 1986, as amended from time to time, and any successor thereto. References to any section of the Internal Revenue Code shall include any final regulations or other published guidance interpreting that section;
U.S. Treasury Regulations means the U.S. Department of Treasury Regulations promulgated pursuant to the U.S. Code; and
Vesting, Vested or Vest (and grammatical variations thereof) means any day on which a Share Appreciation Right held by a Grantee shall become exercisable.
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No Share Appreciation Rights shall be settled in Shares; rather, all exercises of Share Appreciation Rights shall be settled solely in cash.
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Share Appreciation Rights are not transferable by the Grantee except to a Permitted Assign, or by will or the laws of descent and distribution, and are exercisable during the lifetime of the Grantee only by the Grantee. No transfer of Share Appreciation Rights by the Grantee by will or by the laws of descent and distribution shall be effective to bind the Corporation or any of its Subsidiaries unless the Corporation has been furnished with written notice of the death of the Grantee together with satisfactory proof thereof, a copy of any will and such other evidence as the Corporation may deem necessary or desirable to establish the validity of the transfer.
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Notwithstanding the terms of any Grant Agreement, in the event of a Change of Control all Share Appreciation Rights that are not otherwise Vested shall immediately Vest and become immediately exercisable upon the completion of a Change of Control and, from and after the completion of the Change of Control, on the day of exercise of Share Appreciation Rights by a Grantee, the Corporation or the relevant Subsidiary, as the case may be, shall pay by way of bonus, and each Grantee who has exercised Share Appreciation Rights from or after the completion of the Change of Control shall be entitled to receive, in cash the Change of Control Payment Amount (as defined below).
For the purposes of this Section 10, Change of Control Payment Amount means:
Nothing herein contained shall prevent any merger, consolidation or amalgamation of the Corporation with or into any other corporation or corporations, or a conveyance or transfer of all or substantially all the assets of the Corporation to any entity lawfully entitled to acquire and operate same, provided, however, that the corporation formed by such consolidation, amalgamation or merger or which acquires by conveyance or transfer all or substantially all the assets of the Corporation shall, simultaneously with such amalgamation, merger, conveyance or transfer, assume the due and punctual performance and observance of all the covenants and conditions hereof to be performed or observed by the Corporation.
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In the event of a change in capitalization affecting the Shares, such as the payment of a stock dividend, a subdivision, consolidation or reclassification of the Shares or other relevant changes in the share capital of the Corporation, such proportionate adjustments, if any, as the Committee in its discretion may deem appropriate to reflect such change, shall be made by the Corporation as to the number of Shares in respect of which Share Appreciation Rights were granted in each outstanding Grant Agreement and the Fair Market Value at the Grant Date of each such Share Appreciation Right. All such adjustments shall be intended to provide that outstanding Share Appreciation Rights shall continue to be exempt from Section 409A of the Code pursuant to U.S. Treasury Regulation Section 1.409A-1(b)(5)(B).
This Plan shall expire on February 13, 2022.
Subject to satisfying any requirements of the Exchange (and the requirements of any other stock exchange on which the Shares may then trade) and applicable laws, the terms and conditions of this Plan may be amended, modified or otherwise changed, in whole or in part, in any manner, by the Committee at any time and from time to time, provided that:
This Plan may be terminated or discontinued in whole or in part by the Board at any time, without prior notice to, or the consent of, the Grantees, provided that such termination shall not affect any Share Appreciation Rights then outstanding, unless consented to in writing by the Grantee by whom such Share Appreciation Rights are held.
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Neither the Board, the Committee, nor any director, officer or employee of the Corporation shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with this Plan, and the members of the Board, the Committee and such directors, officers and employees of the Corporation shall be entitled to indemnification by the Corporation in respect of any claim, loss, damage or expense (including legal fees and disbursements) arising therefrom to the fullest extent permitted by law. The costs and expenses of implementing and administering this Plan shall be borne by the Corporation.
The invalidity or unenforceability of any provision of this Plan shall not affect the validity or enforceability of any other provision and any invalid or unenforceable provision shall be severed from this Plan. This Plan shall be governed by, and interpreted in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to principles of conflict of laws.
APPROVED by the Board of Golden Star Resources Ltd., and effective as of, the 13th day of February, 2012.
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